CUSTOMARY USE of the beach has been recognized by ordinance in Walton County, but a number of challenges to the concept are proceeding in court. (Photo by Dotty Nist)
By DOTTY NIST
A new lawsuit challenging the Walton County Customary Use Ordinance was filed on May 11 by a Texas limited liability company known as A Flock of Seagirls (FOS).
The lawsuit was filed in U.S. District Court in Pensacola. It involves Walton County beachfront property purchased by FOS, then known as Sweat Equity, L.L.C., in 2011, according to the complaint. The property, a 0.365-acre lot, is located on Beach Lane in the WaterColor subdivision.
The complaint indicates that the property was formerly under the ownership of the St. Joe Company and was conveyed from St. Joe in 2002 with a “limited access agreement” in place.
Included with the complaint, the filed and recorded easement references an earlier (1997) agreement between the St. Joe Company and Walton County granting non-exclusive and perpetual easements and rights-of-way to the county and its citizens across certain St. Joe Company parcels depicted, including an access easement parcel and a beach easement parcel.
The Walton County Customary Use Ordinance went into effect on April 1, 2017, providing, in part, that the “public’s long-standing customary use of the dry sand areas of all of the beaches in the County for recreational purposes is hereby recognized and protected.”
The ordinance also stated that “no individual, group, or entity shall impede or interfere with the right of the public at large, including the residents and visitors of the County, to utilize the dry sand areas of the beach are owned by private entities,” with the exception noted that the public “shall not use” a 15-foot buffer zone extending seaward from the toe of the dune or from any permanent, habitable, privately-owned structure, whichever is more seaward, except as necessary to use a a public beach access point.
The aforementioned recreational purposes were stated to be the “sole uses” of traversing the beach, sitting on the sand in a beach chair, towel or blanket, using a beach umbrella not larger than seven feet in diameter, sunbathing, picnicking, fishing, swimming or surfing off the beach, placement of surfing or fishing equipment, and “building sand creations.”
Prior to the customary use ordinance being approved and taking effect, in June 2016, the Walton County Board of County Commissioners had approved ordinance changes prohibiting signs, chains, ropes, fences, and other obstructions, including “private beach” signs, from being placed on the beach in the area south of the coastal construction control line to the wet sand.
The A Flock of Seagirls complaint states that FOS purchased its beachfront property, “for a price based on the reasonable assumption that the only public encumbrance was the Access Easement,” (in place since the conveyance of the property from the St. Joe Company.)
FOS charges that the customary use ordinance “purports to convey rights to persons who would otherwise have no right to access possess or use any of FOS’s property not covered by the Access Easement.”
“The Customary Use Ordinance also allows occupation and use of the property beyond foot traffic passage to the beach. The ordinance is an unlawful attempt to take constitutionally protected property rights from FOS,” the complaint continues.
FOS also states that the ordinance provisions regarding signs deprive FOS of the ability to post signs to “discourage unwanted activity or intrusion,” and therefore negatively impact FOS’s “right to peaceful enjoyment and possession of the property.”
“Takings Clause” violations of the U.S. Constitution are alleged by FOS. “Under the Fifth and Fourteenth Amendments to the United States Constitution, the County may not authorize or invade private land without due process and without providing just compensation,” the complaint reads.
It also alleges that the “limits” resulting from the customary use ordinance have diminished the value and marketability of FOS’s property.
In connection with the “Takings Clause” allegations, FOS asks the court, among other requests, to prohibit the county from “enforcing or taking any further action attempting to acquire or obtain use or possessory rights to FOS’s property through executive action.”
In an additional “count” or cause of action in the lawsuit, FOS maintains that the areas “encumbered by the Access Easement specifically limits access to foot traffic, and it only allows for passage, not parking or occupation.”
FOS further maintains that, according to the Access Easement, the easement “will be deemed abandoned if the County attempts to use FOS’s property for a purpose not specified in the Access Easement.”
Arguing that the county’s actions have resulted in the easement being abandoned, FOS requests that the court declare it “abandoned and void.”
The FOS lawsuit was originally assigned to Chief Judge M. Casey Rodger and was referred to Magistrate Judge Charles J. Kahn, Jr.
FOS is represented by attorneys with the Barron and Redding, P.A., law firm.
This is one of a number of lawsuits challenging the customary use ordinance, one of those having been filed in December 2016 by the Rosemary Beach Property Owners Association in Walton County Circuit Court. A hearing on that lawsuit is scheduled for Aug. 17.
Also proceeding in U.S. District Court in Pensacola are two lawsuits filed by Walton County beachfront property owners Ed and Delanie Goodwin and Lionel and Tammy Alford, respectively. The latter two lawsuits were originally filed in response to the June 2016 approval by Walton County of prohibitions on signs, chains, ropes, fences, and other obstructions on the beach. Following the county’s approval of the customary use ordinance, the issue of customary use was incorporated into those lawsuits.